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UNITED STATES COURT OF CLAIMS. 

\\ 



DECISION OF THE CASE 



OF THE 



PRIVATE ARMED BRIG GENERAL ARMSTRONG, 

CAPTAIN SAM C. REID AND OTHERS, CLAIMANTS, 



T8. 



THE UNITED STATES. 



I 



I 









UNITED STATES COURT OF CLAIMS. 

DECISION OF THE CASE ^^ 

OF TUB ''^ Jp^ 

PRIVATE ARMED BRIG GENERAL ARMSTRONG, ' 

CAPTAIN SAM C. REID AND OTHERS, CLAIMANTS, 

vs. 

THE UNITED STATES. 



WASHINGTON. MARCH 17, 1855. 



Chief Justice Gilciirist delivered the opinion of the Court. 



This case has been pending before the people and 
government of the United States, in various forms, for 
more than forty-one years. It has never, until recently, 
been in a situation to be thoroughly argued and inves- 
tigated as a question of law and of fact ; although, from 
the peculiar circumstances attending it, and from the 
discussions in Congress, it has commanded the atten- 
tion and excited the interest of the public. We are 
now to consider it, however, in its relation to individ- 
ual rights and national liabilities, and in this point of 
view it requires a careful consideration. 

The case is an interesting one in a national point of 
view, not only because it relates to the duties of neu- 
tral nations towards belligerents, but because it raises 
the question, how lar a belligerent power is liable to 
its citizens for losses they have sustained through the 
neglect of their government to insist that the neutral 
nation shall perform its obligations. It is also interest- 
ing as a brilliant illustration of the gallantry and self- 
devotion of our countrymen. 

The leading facts in the case have been notorious to 
the American people for more than forty years. On 
the twenty-sixth day of September, 1814, the Ameri- 



/ 

2 "' ^ 

can private armed brig General Armstrong cast anchor 
in the port of Fayal, a part of the dominions of the 
crown of Portugal, to get a supply of fresh water. In 
the afternoon the British brig Carnation, of 18 guns; 
the ship Rota, of 38 guns; and the 74 gun ship Plan- 
tagenet, came into the port, and anchored a,bou^ seven 
o'clock. In the evening four boats approached the 
General Armstrong. Captain Reid repeatedly hailed 
them, and warned them to keep off. They continued 
to approach, when he fired on them and killed and 
wounded several men. The boats returned the fire, 
and killed one man, and wounded the first lieutenant. 
The British then retreated, and about midnight renewed 
the attack with twelve boats and about four hundred 
men, which ended in their total defeat with great 
slaughter, and the partial destruction of their boats. 
The American brig carried seven guns, and her crew 
amounted to ninety men. She had two killed, and 
seven wounded, while the killed and wounded on the 
part of the British must have been nearly two hundred 
men. So great was the loss that the Calypso sloop of 
war, which arrived a few days after, was sent home 
with the wounded men. The British commander, Cap- 
tain Lloyd, finding this mode of attack unavailing, with 
laudable discretion anchored the Carnation close in 
shore, and cannonaded the brig, when her gallant de- 
fenders finding it useless to resist such an overwhelm- 
ing force, abandoned the vessel, and she was then 
safely set on fire by the British. 

The kingdom of Portugal was neutral, or professed 
to be so, in the war between the United States and 
Great Britain, and Fayal was a neutral port. Any vio- 
lation of the neutrality of the port, by either of the 
belligerents, was a breach of the law of nations. The 
property of belligerents when within the neutral juris- 



diction is inviolable. It is not lawful to make neutral 
territory the scene of hostility, or to attack an enemy 
while within it ; and if the enemy be attacked, or any 
capture made under neutral protection, the neutral is 
bound to redress the injury and effect restitution. — 1 
Kent. Com., 117 ; Yattel, B. 3, ch. 7, § 132. In the case 
of the Tiuee Gehroeders, 3 Rob., 13G, Sir William Scott 
says, that no use of a neutral territory for the purposes 
of war is to be permitted. "Such an act as this," he 
says, "that a ship should station herself on neutral 
territory, and send out her boats on hostile enter- 
prises, is an act of hostility much too immediate to be 
permitted." 

That there was a violation of the neutrality of the 
port of Fayal by the one party or the other is indis- 
putable. If the party attacked merely exercised the 
right of self-defence, that cannot be a cause of com- 
plaint. It is a question of fact, to be determined upon 
an examination of the evidence, which party violated 
the rights of the neutral by attacking the other. Did 
the American brig, with her seven guns and ninety 
men, commit the folly of attacking the boats of the 
British squa^lron, reinforced as their crews might almost 
instantly have been by many hundreds of men, or did 
the British commander, seeing the brig lying, as he 
imagined, helpless within his grasp, determine to attack 
and carry her at all events; and did he pursue the 
course which any officer would have adopted if his 
object were to capture an enemy's vessel? This, of 
itself, would, according to Sir William Scott, have been 
a violcftion of neutrality. "Suppose," he says, "that 
even if a direct hostile use should be required to bring 
it within the prohibition of the law of nations, nobody 
will say that the very act of sending out boats to effect 
a capture is not in itself an act directly hostile." 



Chancellor Kent says, "no measure is to be taken that 
will lead to immediate violence." — 1 Kent Comm., 118. 
Upon this point the law is clear and indisputable. 

The first question that presents itself is a question 
of fact, and that is, whether, in this transaction, the 
British or the Americans were the aggressors. Mc^re than 
forty-one years have elapsed since the affair happened. 
We are not, however, forced to depend upon the testi- 
mony of witnesses given for the first time after so long 
a period, and from the credit of which, time, and the 
failure of memory, might properly require us to make 
some deduction. We have the statements of those 
who were actors in the transaction, made at the time 
of its occurrence, and with every opportunity of know- 
'ing the truth. It is agreed by the counsel on both 
sides, that the facts and the law are now both before 
us, and the various questions in the case have been 
argued with a skill and ability that leave nothing to 
be desired. We shall endeavor to examine the evi- 
dence, irrespective of the consideration that the United 
States and Great Britain were then at war, and of any 
national feeling that might be excited by the saiiguin- 
ary conflict that took place in the harbor of Fayal. We 
shall examine, in the first place, the testimony of the 
witnesses, both American and English, who were actors 
in the transaction. 

On the 27th day of September, 1814, Samuel C. 
Reid, the captain of the Armstrong; Frederick A. 
Worth, the first lieutenant; Robert Johnson, third 
lieutenant; Benjamin Starks, sailing master; John Bros- 
noham, surgeon; Robert E. Allen, captain of marines; 
Thomas Parsons, James Davis, Eliphalet Sheffield, and 
Peter Tyson, prize masters of the brig, made oath 
before Mr. Dabney, the American consul for the Azores, 
to a declaration and i)rotest, the material parts of which 



are as follows : "That he (Reid) sailed in and with said 
brig from the port of New York, on the ninth day of 
September last past, well, found, staunch, and strong, 
and manned with ninety officers and men for a cruise; 
that nothing material happened on the passage to this 
island, until the twenty-sixth instant, when she cast 
anchor in this port, soon after twelve o'clock at noon, 
with a view to get a supply of fresh water; that during 
the said afternoon his crew were employed in taking 
on board water, when about sunset of the same day, 
the British brig of war. Carnation, Captain Bentham, 
appeared suddenly, doubling round the northeast point 
of this port ; she was immediately followed by the 
British ship li-ota, of thirty-eight guns, Captain P. 
Somerville ; and the seventy-four gun ship Plantagenet, 
Captain Robert Lloyd; which latter, it is understood, 
commanded the squadron. They all anchored about 
seven o'clock, p. m., and soon after, some suspicious 
movements on their part, indicating an intention to 
violate the neutrality of the port, induced Captain 
Ried to order his brig to be warped in shore, close 
under the guns of the castle ; that in the act of doing 
so lour boats approached his vessel, fdled with armed 
men Captain Reid repeatedly hailed them, and 
warned "them to keep oil", which they disregarding, he 
ordered his men to tire on them, which was done, and 
killed and wounded several men. The boats returned 
the lire and killed one man, and wounded the first 
lieutenant; they then fled to their ships and prepared 
for a second and more fomidable attack. The Ameri- 
can brig, in the meantime, was placed within half 
cable's length of the shore, and within half pistol shot 
of the castle. Soon after midnight, twelve, or as some 
state, fourteen boats, supposed to contain nearly four 



hundred men, witli small cannon, swivels, blunderbusses, 
and other arms, made a violent attack on said brig, 
when a severe conflict ensued, which lasted near forty 
minutes, and terminated in the total defeat and partial 
destruction of the boats, with an immense slaughter on 
the part of the British. The loss of the Americans in 
the action was one lieutenant and one seaman killed, 
and two lieutenants and five seamen wounded. At 
daybreak the brig Carnation was brought close in, and 
began a heavy cannonade on the American brig, when 
Captain Reid, finding further resistance unavailing, 
abandoned the vessel, after partially destroying her, 
and soon after the British set her on fire. The said 
Captain Reid, therefore, desires me to take his protest, 
as he by these presents does most solemly protest, 
against the said Lloyd, commander of the said squadron, 
and against the other commanders of the British ships 
engaged in this infamous attack on the said vessel, 
when lying in a neutral, friendly port ; and the said 
Captain Reid also protests against the government of 
Portugal, for their inability to protect and defend the 
neutrality of this their port and harbor; as also, against 
all and other State or States, person or persons, whom 
it now doth or may concern, for all losses, costs, and 
damages that have arisen, or may arise to the owners, 
officers, and crew of the said brig General Armstrong, 
in consequence of her destruction, and the defeat of her 
cruise, in the manner aforesaid." 

It will be perceived that Captain Reid and his officers 
state that some suspicious movements, indicating an 
intention to violate the neutrality of the port, induced 
Captain Reid to order his brig to be warped in shore, 
close under the guns of tlie castle ; " that in the act of 
doing so, four boats approached his vessel filled with 



armed men. Captain Reid repeatedly hailed them, and 
warned them to keep off, which they disregarding, he 
ordered his men to fire on them, which was done, and 
killed and wounded several men. The boats returned 
the fire, and killed one man and wounded the first 
lieutenant." 

Here ten witnesses, upon whose veracity no imputa- 
tion has been cast, and who had the means of observa- 
tion, give an account of a transaction which happened 
under their own eyes, and in which they took a part. 

On the other side is the deposition of Lieutenant 
Robert Fausset, sworn to on the 27th of September, 
1814, before the British consul at Fayal, who states that, 
"on Monday the 2Gth instant, about eight o'clock in the 
evening, he was ordered to go in the pinnace or guard- 
boat, unarmed, on board his Majesty's brig Carnation, 
to know what armed vessel was at anchor in the bay ; 
when Captain Bentham, of said brig, ordered him to 
inquire of said vessel ; which, by information, was said 
to be a privateer. When said boat came near the 
privateer, ' they hailed to say the Americans,' [which 
probably should be, " the Americans hailed,"] and 
desired the English boat to keep off, or they would fire 
into her ; upon which Mr. Fausset ordered his men to 
back astern, and with a boat-hook was in the act of so 
doing, when the Americans, in the most wanton manner, 
fired into the said English boat, killed two and wounded 
seven, some of them mortally ; and this, notwithstand- 
ing said Fausset frequently called out not to murder 
them, that they struck and called for quarters, Said 
Fausset solemnly declared that no resistance of any 
kind was made, nor could they do it, not having any 
arms, nor, of course, sent to attack said vessel. Also 
several Portuguese boats, at the time of said unprece- 



8 

dented attack, were going ashore, which, it seems, 
were said to be armed." 

This deposition is said, in the letter of Count Tojal 
to Mr. Hopkins, of September 29th, 1849, to be "con- 
firmed under oath by the master and one seaman of 
that barge,'' 

The contradictions are, that the protest says the boats 
were armed, while Fansset says they were unarmed ; 
the protest says the fire was returned, while Fansset 
says they made no resistance; the protest says four 
boats approached the brig, while Fansset says he ap- 
proached with the pinnace only; the protest says that 
the boats disregarded the warning of Captain Reid to 
keep ofi", and that then he fired ; Fausset says that upon 
being ordered to keep off he ordered his men to back 
astern, and was in the act of doing so when the Ameri- 
cans fired. Upon all these matters, there is the testi- 
mony of ten witnesses from the brig, against three from 
the boat; and, of coure, the weight of evidence is 
decidedly in favor of the Americans, admitting all the 
witnesses to have been equally honest, and to have 
possessed equal opportunities for knowing the truth. 

Now upon this evidence, derived as it is' from the 
actors in the transaction, who are the very best sources 
of information, no intelligent jury could doubt for a 
moment that the statements in the protest were proved. 
They would find the facts to be, as we do, that four 
armed boats approached the brig; that they were hailed 
and ordered to keep off or they would be fired into; 
that they disregarded the warning; that the Americans 
then fired and killed some of their men ; that they re- 
turned the fire, and killed one man and wounded the 
first lieutenant. These facts we find to be proved by 
the evidence. 





But there are some statements in Fausset's deposition, 
which, to say the least, are singular, and which cast 
some doubt upon the entire correctness of his stor}'. It 
appears from his deposition that the British knew that 
the brig was an "armed vessel," and, "by information, 
was said to be a privateer." He says that " he was 
ordered to go in the pinnace or guard-boat, unarmed,'' 
to the Carnation, to know what vessel it, was; and the 
captain ordered him to inquire of the brig. Now, it is 
singular, that in the evening, in a time of war, the com- 
modore of a British squadron should be so particular as 
to order the boat to be unarmed, and still more sin- 
gular that Captain Bentham should, at such a time, order 
an unarmed boat to approach a vessel which he knew 
to be armed, and supposed to be a privateer, and prob- 
ably an American privateer. It was not by sending 
out unarmed boats, under such circumstances, that Brit- 
ish naval officers attained for their country, and so long 
exercised, the sovereignty of the seas ; and the British 
officers, of forty years ago, were not trained in a school 
that would tolerate such negligence. It is singular, 
also, that Fausset, who was sent to inquire "what armed 
vessel was at anchor," did not hail the brig at all; but, 
instead of lying off at a proper distance and hailing the 
bris:, he was so near, when the Americans hailed him, that 
he says he backed his boat astern ivith a boat-hook ! If 
he went there in his unsuspecting simplicity merely to 
procure information, was it necessary for him, in that 
quiet bay, and that moonlight night, to run his boat 
directly against the vessel's side ? Could he not have 
laid off a hundred feet from the brig, too far to hoard 
her, but near enough to get an answer to his question ? 
His story is entirely inconsistent with the position that 
he desired only to know what vessel she was, and 



10 

strongly confirms tlie assertion in the protest, both that 
Captain ReicVs warning was disregarded and that the 
boat returned the fire. It is difficult to understand the 
purpose of Fausset's allusion to the Portuguese boats, 
which, "at the time of the attack, were going ashore, 
which, it seems, were said to be armed," unless it be to 
intimate that Captain Reid mistook Portuguese armed 
boats oTjin,*!' ashore for English armed boats about to 
attack his vessel. The Portuguese boats had nothing to 
do with the affair ; this is the only allusion to them, and 
the fact of their presence in the bay is wholly immaterial. 
It may be added that Fausset says more than that the 
boat Vv'as unarmed^ from which it raiglit be inferred that 
it Avas unarmed for an assault nierel}" ; for he soys that 
" no resistance of any kind was made, nor could they 
do it, not having «;^?/ arms." He thus makes the con- 
dition of his boat so extremely defenceless, that his story 
fails to carry conviction with it. 

But it is said the Americans fired the first shot, and 
were consequently the aggressors. That they fired the 
first shot is clear, but the consequence does not follow 
that by so doing they were the aggressors. Sir William 
Scott says, 3 Rob., 136, "that a ship should station her- 
scif on neutral territorv, and send out her boats on hos- 
tile enterprises, is an act of hostility much too im- 
mediate to be permitted." That the British did send 
out their boats on a hostile enterprise, is, we think, too 
clear to admit of a doubt. What, then, was Captain 
Reid to do, in the face of the moral certainty that the 
British were determined to capture his vessel ? Was 
he to permit them to come on board ; to surrender the 
brave men Vvdio looked to him for an example, to be 
carried to the prison at Dartmoor, or to be compelled 
to servo against their countrymen in an English frigate ? 



11 

Was he not rather to obey the dictate alike of common 
sense and military honor, that in doubtful emergencies 
it is safer and nobler to fight than to retreat ; and, be- 
yond all this, had he not a rifjht, upon every principle 
that should animate a commander, having done all that 
prudence and discretion could ask for, to strike one 
blow in defence of his ship ? We have entirely mis- 
taken the extent of the right of self-defence, if both 
law and reason did not justify him in firing upon the 
English boats. 

Bat, even in the absence of direct evidence, the pre- 
sumption that the boats were armed, and that the inten- 
tion was hostile, is extremely strong. We were at war 
with England. When the British squadron came into 
the pore and discovered the American brig, it was well 
understood that all the vessels present were ships of 
war. It is absurd to say that these four boats were sent 
merely to reconnoitre the brig. Such a force was en- 
tirely unnecessary for that purpose. Such a thing was 
never heard of as that, in the evening, in time of war, 
a naval commander would approach a vessel, which he 
did not know to be friendly, with four boats filled with 
unarmed men. And even if Fausset's statement be 
assumed to be correct, and one boat only approached 
the brig, it is extremely improbable that, if his boat 
were unarmed, and his intentions were friendly, 
he would, without hailing the brig, have come sufii. 
ciently near to her to reach her with a boat-hook, when 
it was just as easy to ascertain what vessel she was 
without coming so near as to excite suspicion Espe- 
cially would he have been cautious not to come too 
near, when, as the protest states, "Captain Reid re- 
peatedly hailed them and warned them to keep off." 
It is also worthy of remark that Fausset's deposition, 



12 

made on the 27tli of September, 1814, was not produced 
until thirty-five years afterwards, when it first made its 
appearance, on the 29th of September, 1849, in the 
letter of Count Tojal to Mr. Hopkins. It is singular, 
too, that a new and entirely different version of the 
transaction is given in the letter of Senor De Castro to 
Mr. Barrow, of the 3d of August, 1843, in which he 
says, " it is affirmed, on the part of Great Britain, that 
they (the boats) only carried inoffensive men, who 
were going ashore from their ships on duty, and that 
they casually met the American brig when she was pre- 
paring to leave the port of Fayal." It is enough to 
say of this statement that it directly contradicts Fausset's 
deposition, and that both cannot be true. 

In addition to the positive evidence and the presump- 
tions, there are also the contemporary declarations of 
the official persons at the island. 

Mr. Dabney, the American consul at Fayal, in his 
official note to the governor of the Azores, dated at 
nine o'clock in the evening of the 2Gth of September, 
1814, says: "In violation of the neutrality, &c., the 
shipsof-war of his Britannic Majesty, now lying in this 
port, lately ordered four or five armed boats to surprise 
and carry off the American armed schooner General Arm- 
strong. * * * The boats were repulsed, but a new 
and more formidable attack is now feared," &c. On the 
28th of September, 1814, the governor of the Azores, 
Elias Jose Ribeiro, states in his despatch to his govern- 
ment as follows : "We are now, for the first time, made 
witnesses to a horrible and bloody combat, occasioned 
by the madness, pride, and arrogance of an insolent 
British officer, who would not respect the neutrality 
maintained by Portugal in the existing contest between 
his Britannic Majesty and the United States of 
America." 



13 

He also says: "I learned that a boat had been sent 
from the British ships-of-\var to examine the privateer, 
and on its return three others had been sent armed, 
and that the captain of the privateer not wishing to 
allow them to come on board of his vessel, a fire was 
be2:un on both sides." 

The governor then states that he desired a conference 
with the British commander, that he " might dissuade 
him, if he were a reasonable man, from continuing the 
hostilities begun so insolently, and repeated, to the 
scandalous contempt of the law of nations." 

He further says that he conceives the British com- 
mander " was aware of the great evil done by his hos- 
tile expeditions in a port not only neutral, but, more- 
over, belonging to an old friend and ally of his nation;" 
and that he wishes to show him his " resentment on 
account of the insults committed by him ;" nor did he 
consider his invitation to visit his ship " either proper 
or decorous." 

The British commander, in answer to a request by 
the governor that he would respect the neutrality of 
the port, states, on the 26th of September, " that one of 
the boats of his Britannic majesty's ship under my 
command was, without the slightest provocation, fired 
on by the American schooner General Armstrong, in 
consequence of which two men were killed and seven 
were wounded ; and that the neutrality of the port, 
which I had determined to respect, has been thereby 
violated. In consequence of this outrage, I am deter- 
mined to take possession of that vessel." To this the 
governor replied: "I must, however, assure you, sir, 
that from the accounts which I have received, it is 
certain that the British boats were the first to attack 
the American schooner." 



14 

It appears, also, from the diplomatic correspondence, 
that the United States always asserted, and that Por- 
tugal for a long time admitted, that the British were 
the a2:2:ressors, and that there was a last claim against 
Portugal. 

In the letter of the Marquis d'Aguiar, the Minister 
of Foreign Aluiirs, to Lord Strangford, the British minis- 
ter, of December 22d, 1814, he speaks of " the outra- 
geous manner in which that commander violated the 
neutrality "'^ "'■■ by audaciously attacking the Ameri- 
can privateer,'' and of " the base attempt of the British 
commander, at the time he commenced the unprovoked 
attack on the American privateer, to attribute those 
violent measures to the breaking the neutrality on the 
part of the Americans in the lirst instance." 

He states, also, that the Prince Regent had " directed 
the minister at London " "' to require satisfaction 
and indemnification not only for his subjects, but for 
the American privateer, whose security was guarantied 
by the safeguard of a neutral port." 

Mr. Sumter, the American minister at Rio, in hisletter 
of January 1, 1815, to the Marquis d'Aguiar, speaks 
of reparation to the Prince Regent of Portugal, for so 
" rude and degrading an attack upon his sovereign 
authority." 

In his letter to Mr. Sumter the Marquis speaks of 
"the manifest violation of his territory (by the British) 
in the infringement of its neutrality." 

In Mr. Monroe's letter, of the 3d of January, 1815, to 
Mr. Sumter, he says : " The growing frequency of simi- 
lar outrages on the part of Great Britain renders it more 
than ever necessary for the government of the United 
States to exact from nations in amity with them a rigid 
fulfilment of all the obligations which a neutral char- 
acter imposes." 



15 

On the 14th of :March, 1818, Mr. Adams, in a letter 
to the Portuguese minister at Washington, said: "It 
is hoped your government will, Avithout further delay, 
grant to the sullerers by that transaction the full in- 
demnity to which they arc by the laws of nations 
entitled." 

In the letter of Mr. Dickens, the acting Secretary of 
State, of the 'iOtli of May, 1835, to Mr. Kavinagh, the 
American charge at Lisbon, he says: "The Portuguese 
authorities at that place having failed to afford to this 
vessel the protection to which she Avas entitled in a 
friendly port, which she had en^.ered as an asylum, the 
government is unquestionably bound by the law of 
nations to make good to the sufferers all the damages 
sustained in consequence o^" the neglect of so obvious 
and acknowledged a duty." 

J\Ir. Kavanagh states to Mr. Forsyth, from Lisbon, on 
the 30th of January, 1836: " It appears that the British 
commander alleged at the time that the crew of the 
General Armstrong had provoked the lirst attack by 
firing into his boats; but the protest made and signed 
on the 2Tth of September, 1814, by Captain Reid and 
all his ollicers, and corroborating circumstances, dis- 
prove this allegation." He repeats his demand for 
indemnity in his letter of the 17th of February, 1837, 
to the Portuiruese Minister of Foreign AtFairs. 

In his despatch to Mr. Forsyth, of the 18th of March, 
1837, he states that he had had an interview with the 
minister, who " spoke of the claim as one which at pre- 
sent could not be considered admissible;" and who 
said that " the Portuguese force at Fayal was alto- 
gether incompetent to protect the privateer against 
the assailants." 

On the 15th of January, 1842, Mr. Webster wrote 



16 

to Mr, Barrow, concerning the claim: "Its justness, I 
believe, has never been denied." And Mr. Barrow 
makes the same statement in his letter of May 25th, 
1842, to the Portuguese Minister of Foreign Affairs, 
Mr. Webster, in his letter to Mr. Barrow of the 18th 
of August, 1842, speaking of this claim and of that of 
James Hall, says: "Both these claims are regarded as 
just by this government, and will not be relinquished 
under the objections heretofore made to them by the 
Portuguese government, which are entirely unsatis- 
factory." 

Mr. Barrow, in his letter of February 20th, 1843, to 
Mr. Webster, says: "The pretexts for delay in the two 
former cases (the General Armstrong and James Hall) 
are of a very frivolous character, and such will con- 
tinue to be given, I am convinced, until a very decided 
tone is assumed by our government." On the 20th of 
March, 1843, he writes: " There has been from the first 
a manifest disposition, I might say determination, on 
the part of the Portuguese government "^^ *^ * * 
to avoid the liability to which they are subject by the 
law of nations in the case of the General Armstrong." 

Such are the contemporary declarations of witnesses 
who saw the transaction; the indignant remonstrance 
of the governor of the Azores ; the admissions of the 
Portuguese government of the existence of a claim on 
our part, contained in their demand for an indemnity 
from England, on account of the loss of the brig, and 
the repeated assertions of our government of a viola- 
tion of the neutrality by the British. Until the 4th of 
August, 1843, there had been no denial, but an ad- 
mission of the justice of this claim upon them. But on 
that day the Portuguese minister, in a letter to Mr. 
Barrow, says: "The accounts all agree that the Ame- 



17 

American brig, under the pretext that four boats from 
the said British vessels \Yere approaching her, fired upon 
them, killing some of the men and wounding others. 
* * '■'■ It is, however, an undeniable fact that the 
first shot came from the American brig, tltus evidenthj 
co7islituUng her the aggresso7\ and a violator of the 
neutrality of the port of a friendly nation." 

Now the Portuguese minister must be presumed to 
have read the evidence on the subject concerning 
which he thought fit to write a letter, and his most 
extraordinary declaration that all the accounts agreed 
that the American brig was the aggressor, must have 
been made in the face of the letter of the governor of 
the Azores, of the 27th of September, 1814, that it was 
"certain that the British boats were the first to attack 
the American schooner;'' and of his other expressions 
of indignation at the conduct of the British. Whatever 
it arose from, whether from an inability to appreciate 
the evidence, a disposition to procrastinate, or an un- 
willingness to oflend the British government, its incor- 
rectness is manifest. It may be remarked, that among 
the published documents are to be found allusions to 
the influence of the British minister in hinderinc: the 
payment of this claim by Portugal. It is singular, 
indeed, that the Portuguese government should not 
have discovered that the evidence proved the Ameri- 
cans to have been the aggressors until twenty nine 
years had elapsed since the affair, and until the pro- 
duction of Fausset's deposition, which had slumbered 
in obscurity during that period. That the British 
government felt an interest in the matter, appears from 
Mr. Clayton's speech in the Senate, on the 26th of 
January, 1855. He says that the British minister 
"desired to confer with me, on one occasion, in regard 






IS 

to the matter, but I declined any conference with him 
on the subject. I thought the British government had 
no rio'ht to interfere." 

The governor of Fayal made no complaint that the 
Americans had violated the neutrality of the port. 
That discovery, as has been stated, remained to be 
made by the Portuguese minister in 1843. The gov- 
ernor did, however, complain of Captain Lloyd, and 
remonstrated against his proceedings; and even the 
minister, in his letter of August 3, 1843, says, that 
"the government of his Britannic majesty, appreciating 
the rashness with which his officers acted in a neutral 
port against said brig, had no hesitation in apologizing 
to the Portuguese government." This statement, how- 
ever, was denied by the British government, as appears 
from the letter of Count Tojal to Mr. Clay, of the loth 
of May, 1850. It does not appear to be necessary to 
settle the question of veracity between them. 

Considering it, then, as proved, that the British were 
the aggressors, the cpestion arises, whether it was the 
duty of Portugal, according to the law of nations, to 
make pecuniary compensation for the damages sus- 
tained by the injured party. 

Upon this point the opinion of the government of 
the United States, as expressed through the various 
Secretaries of State, is entitled to much weight. That 
Portugal was bound to pay the damages sustained, is 
asserted by Mr. Monroe, Mr. Adams, Mr. Forsyth, Mr. 
Upshur, Mr. Webster, and Mr. Clayton. Mr. Forsyth, 
in his letter of September 21, 183G, instructs Mr. Kava- 
nagh to "demand li'om the Portuguese authorities, 
the highest amount of damages which in your judg- 
ment a prudent and conscientious man would feel him- 
self justified in asking, were he prosecuting his own 



19 

claim." The same instructions are given to Mr. Clay, 
in Mr. Clayton's letter of March 8, 1850. 

It is doing the eminent men who have occupied the 
responsible positio i of Secretary of State, great injus- 
tice to assert that when they alleged that Portugal was 
liable in damages, they did not express their honest 
convictions, but condescended to the position of an ad- 
vocate. They had no temptation to say what they did 
not believe. The claim was not made a party question, 
nor did it have any connection with party politics. 
There was no call upon them to hazard their reputation 
as statesmen and jurists, upon a position which they 
did not believe to be tenable. 

But the case of Portugal is attempted to be put on 
the ground that she was unable to protect her neu- 
trality. 

To this position there are two answers. In Count 
Tojal's letter of March 9, 1850, to Mr. Clay, he says 
that, "no neutral is obliged to give pecuniary indemni- 
fication for damages and material losses that may have 
been caused in its ports by one belligerent to another, 
once it can be shown that it has used all the means at 
its disposal to give protection." 

The answer to this is thus strongly put by Mr. Clay, 
in his letter to Count Tojal, of March 15, 1850. He 
says : " What were the means in her power? She had 
the physical power of more than one hundred regular 
soldiers, some artillery, a fort, the power of the popu- 
lation of Fayal, about thirty American seaman who 
requested to be allowed to defend their brethren, great 
advantage of position, and the immense moral power 
of right against wrong ; these were the means she had. 
Did she use all or any of them to protect and defend 
the privateer ? Confessedly she did not ; she even 



20 

went beyond mere failure to defend or protect, when 
she prevented the American seamen from rendering 
whatever assistance was in their power. And if she did 
not use all these means, is it not clear from his excel- 
lency's own argument that she is bound to indemnify? " 
The whole tenor of tlie despatch of the governor of 
the Azores, of the 2Sth of September, 1814, shows that 
he uried no means whatever with the British commander 
but expostulation. Although indignant at the outrage 
upon the sovereignty of Portugal, the despatch needs 
only a careful perusal to make it apparent that the gov- 
ernor was paralyzed by the position in which he stood, 
and that he had no firmness. He seems to take credit 
to himself for refusins; to consent that the American 
seamen might aid in defending the brig, for taking 
away from the Americans, as they came ashore, their 
swords and pistols, and for the energetic feat of order- 
ing the standard not to be hoisted over the castle the 
next morning to shov/ his resentment at the conduct of 
the British. He mentions also his decided act, in seiz- 
ing two American seamen, who, during a funeral, 
" gave shouts of joy on account of the fight and retreat 
in which these officers lost their lives." A\\ these might 
have been very bold and gallant acts, but unfortunately 
for him, his own government did not approve of his 
conduct. The Marquis d'Aguiar, the Portuguese 
Minister of Foreign Affairs, in his letter to Lord 
Strangford, of the 22d of December, 1814, says, that if 
it were not for the idea that he desired to protect the 
iiiliabitants from the ravages which the British com- 
mander would not have failed to infiict, "the censura- 
ble moderation of the governor during these outrages 
would have induced his royal highness to have imme- 
diately caused a process to have been instituted for the 



21 

punishment of that officer." The question is not 
whether Portugal was a stronger or a weaker nation 
than Great Britain. It is simply whether atFayal, and 
under the existing circumstances, the governor did 
what his duty required of him as an officer of a neutral 
nation; and his government answered that question by 
saying that he did not do his duty. With these facts 
and admissions, it is almost idle to say that Portugal 
was r.ot bound to make indemnity, because she was 
weak. Bynkershoeck says: "If it be the duty of the 
sovereis^n to use his utmost endeavors to ettect that 
purpose, it follows that he must do it at his own 
expense. Nay, by going to war, if other means are 
not sufficient. Such is the law which is observed 
among all nations." — Byukershoeck's Law of "War, by 
Diiponccau, p. GO. 

But admitting, for the sake of argument, that the 
governor of the. Azores used all the means in his power, 
and was unable to resist the British force, the other 
answer to the position is, that the law of nations did 
not relieve her from the obligation to make pecuniary 
compensation. 

Now if Portugal was unable to protect her neutrality, 
that was her misfortune. Chancellor Kent says: "If 
the enemy be attacked, or any capture made under neu- 
tral protection, the neutral is bound to redress the in- 
jury and effect restitution." — 1 Kent, 122. That is, if 
the enemy be attacked, the neutral is bound to redress 
the injury ; if a capture be made, the neutral is bound 
to eltect restitution. The question here does not relate 
to the restitution of property captured, but to the redress 
of an injury from a hostile attack. How is an injury, 
sustained by reason of an attack upon the property of 
an enemy's citizen, to be redressed but by paying for 



22 

the injury done ? The position is stated absolutely and 
without any provisos or limitations. Can it be that a 
neutral is bound to restore a ship captured in its waters ; 
but if the ship be captured, and then sunk by the enemy, 
no duty whatever rests upon the neutral ? The same 
reason which requires a neutral to restore a captured 
vessel, calls on it also to make compensation where a 
vessel is destroyed. The same principle lies at the foun- 
dation of either duty. The position that a neutral is 
bound to make restitution, but not compensation, may 
thus be stated: If the neutral sees a ship captured in 
its waters, and is able to eifect restitution, it is bound 
to do so. But if restitution cannot be made from what- 
ever cause, then the neutral is to remonstrate to the 
belligerent who has done the wrong, and who knows 
that the neutral has done all it could ; and if the bellig- 
erent refuses to do anything in the matter, still the law 
of nations is satisfied and the affair is settled. Such was 
the course adopted in the present case. The vessel 
was destroyed by the British, and the neutral remon- 
strated, consequently, the neutral was absolved from all 
obligation to make compensation. This distinction be- 
tween restitution and reparation, although inappreciable 
by the unassisted reason, may exist in virtue of some 
mysterious afflatus, which is supposed to inspire the 
councils of diplomatists. It is enough to say that it 
deprives the law of nations on this point of all vitality, 
and reduces it to a solemn absurdity. When a ship is 
destroyed this distinction releases the neutral from the 
obligation to do what is physically impossible, but it 
absolves the neutral from the duty of doing the only 
thing in its power, that is, to effect restitution. 

It is unnecessary to take the position that a neutral 
is bound always to have in all its ports a force sufficient 



23 

to resist any attack that might be made. This would 
be unreasonable; for even England, with her powerful 
navy, could not accomplish it. But it is equally un- 
reasonable to say that because a neutral did not happen 
to have at any given place a sufficient force to protect 
its neutrality, therefore it is absolved from all duty, 
happen what may. That Portugal, relatively to Eng- 
land, was a weak nation, may be admitted. But she 
assumed to be neutral in the war between England and 
America. As she claimed the rights, so she was sub- 
ject to the obligations of neutrality. If she was not 
strong enough to cause herself to be respected as a 
neutral, she should not have placed herself in that 
position. She chose her part in the great republic of 
the world, and stood in relation to other nations upon 
a common ground with them. It is said by Vattel, 
Prel. ch. ^ 18, "since men are naturally equal, and a 
perfect equality prevails in their rights and obligations, 
as equally proceeding from nature, nations composed 
of men, and considered as so many free persons, livin"- 
together in the state of nature, are naturally equal, and 
inherit from nature the same obligations and rights. 
Power or weakness does not in this respect produce 
any dilTerence. A dwarf is as much a man as a giant ; 
a small republic is no less a sovereign state than the 
most powerful kingdom." This is a clear and precise 
statement by an eminent writer of the reciprocal rights 
and obligations of nations, whatever may be their relative 
power. As weakness does not deprive a nation of its 
rights, it does not release her from the obligations 
which she owes to other nations. A nation may be 
weak as regards armies and fleets, but she may be 
wealthy. It may be a part of her policy to avoid the 
expenditure of her resources in military and naval pre- 



24 

paration. She may choose to lavish her revenue upon the 
empty forms and pageantry of government, disregard- 
ing- and careless of the advance and happiness of her 
people. But it would be strange indeed if the course 
she might see fit to adopt of her own free will, should 
be received as an excuse for her non-performance of 
the duties which she would exact towards herself from 
nations whose government might bebetter administered, 
and whose revenues might be more carefully expended. 

In Molloy's Treatise De Jure Maritime, B. 1, Ch. 1, 
sec. 16, a case is stated which affords an exact precedent 
for the one before us. After mentioning several cases 
where hostile encounters were forbidden in neutral 
ports, he says: "But they of Hamburgh were not so 
kind to the English when the Dutch fleet fell into their 
road, where rid at the same time some English mer- 
chantmen, whom they assaulted, took, burnt, and 
spoiled; for which action, and not preserving the 
peace of their port, they were, by the law of nations^ 
adjudged to answer the damage, and I think have paid 
most or all of it since." 

It is not to be expected that many precedents are to 
be found exactly resembling the present case, v/hich was 
so peculiar in its circumstances. During her long war 
with France, England, by her powerful navy, was en- 
abled to set at defiance the law of nations in respect to 
neutrals with impunity ; but the case cited from Molloy 
shows that the English claimed from Hamburgh, in 
1665, the same compensation in damages which the 
present claimants demanded from Portugal. It is un- 
necessary for us to pursue the investigation of the ques- 
tion as to the liability of Portugal any further. We 
have the opinion of the most eminent jurists and diplo- 
matists of the United States, the authority of Molloy, 



25 

and, as we thiuk we have shown, the intrinsic propriety 
and reasonableness of the position. We have found 
nothing in the books which deserves to be weighed 
ag-ainst these views. Even Flanders, in his treatise on 
Maritime Law, (p. 45,) although he states as his indi- 
vidual opinion that the reasoning which maintains the 
obliiration of the neutral to answer in damages, seems 
to him to be inconclusive, admits that it is held by 
writers on the law of nations that the neutral is bound 
to redress the loss himself. But he cites no authority 
to the contrary, and he can find no stronger ground on 
which to found his opinion, than that the neutral is a 
host extending his hospitality to a belligerent who 
comes into his port. But, with submission, we conceive 
that such is not the relation in which the parties stand 
to each other. A nation which assumes to be neutral 
has certain duties which she is compelled, by the law 
of nations, to perform. It is said by Vattel, book 3, 
ch., 7, § 118 : "A neutral nation preserves towards 
both the belligerent powers the several relations which 
nature has instituted between nations. She ought to 
show herself ready to render them every office of 
humanity reciprocally due from one nation to another. 
She ought, in everything not directly relating to war, 
to give them all the assistance in her power, and of 
of which* they may stand in need." It thus appears 
that the neutral is not a host extending hospitality ex 
merd gratia, but is part of the great republic of nations, 
bound to render offices of humanity. The parallel of 
this writer, therefore, foils, and his opinion must fall 
with the inaccurate figure which he uses to illustrate 
his views. 

Our opinion is, that Portugal was bound, by the law 
of nations, to make to the claimants pecuniary com- 
pensation. 
4 



2G 

The proposition to refer this case to an arbitrator, 
came from the Portuguese government. The course 
of the United States had been consistent throughout. 
We had always maintained that we had a valid claim 
upon Portugal ; that the facts showed that the British 
were the aggressors, and that, by the lavf of nations, 
Portugal was bound to redress the injury sustained by 
our citizens. The first remark on the subject of an 
arbitration we have found, is in Mr. Clayton's letter of 
the 8th of March, 1850, when he wrote to Mr. Clay, the 
American charge d'affaires at Lisbon: " In regard to a 
reference of our claims to an arbitrator, which has been 
indicated, the President has directed me to say that no 
such course will, under the circumstances, receive his 
sanction ; and this for reasons too obvious to need 
enumeration." On the 30th of April, he wrote to the 
Portuguese minister at Washington, that the matter 
would be referred to Congress, "should the Portuguese 
government persevere in the refusal to adjust and settle 
what are believed to be the incontrovertible claims of 
American citizens upon that government," and he 
rejected the proposition of the minister to submit this 
claim to arbitration. 

The treaty between the United States and Portugal 
was concluded on the 2Gth of February, 1851. The 
first article provides that Portugal shall pay to the 
United States a sum equivalent to the indemnities 
claimed for several American citizens. By the second 
article it is agreed that the parties, " not being able to 
come to an agreement upon the question of public law 
involved in the case of the American privateer brig 
General Armstrong, that the claim presented by the 
American government, in behalf of the captain, officers, 
and crew of the said privateer, should be submitted 



li 



to the arbitrament of a sovereign, potentate, or chief of 
some nation in amity with both the high contracting 
parties." 

In relation to the arbitration we may remark, that 
in whatever we may say upon the subject, we do not 
mean to be understood as denvinsr the ris-ht of the 
government of the United States, acting for the whole 
people, to submit to arbitration any controversy with 
a foreign government, in which public interests are 
alone involved. Nor is it necessary to deny the power 
of the United States to submit to arbitration the claim 
of one of its own citizens upon a foreign government 
which it has been prosecuting, in such a way as to pre- 
clude itself from again pressing that claim upon such 
foreign government, or insisting upon it in any way as 
a cause of war, or a matter of national concern. There 
is a broad distinction between the submission of a case 
involving national interests exclusively, and the submis- 
sion of a case relating to private rights alone, where 
the only matter of public concern is the general duty 
of a government to protect its citizens. Where a case 
of the latter description is submitted, it must be done 
with a due regard to the rights of the citizen. If his 
rights be disregarded and sacrificed, it is the dictate 
alike of law, common sense, and justice, that the gov- 
ernment by which his rights have been sacrificed 
should make him restitution. We think it cannot be 
denied, that to relieve a government from liability to 
a citizen on this account, it should appear that the case 
was one proper to be submitted; that he had an oppor- 
tunity of being heard before the arbitrator by argu- 
ment and proofs ; that the award was certain, definite, 
and within the submission ; and that the arbitrator did 
not exceed his powers. 



28 

In the first place, we are unable to perceive what 
good and sufficient reasons there were, that required 
the United States to submit the claims of their citizens 
upon a foreign government to arbitration. We find 
no reasons alleged in the correspondence that led to 
the submission. A citizen of this republic is entitled 
to ask his government, respectfully, why a given course 
was pursued in relation to his private rights. The gov- 
ernment holds its public powers by no higher tenure 
than the citizen possesses his private rights. Public 
powers are delegated, and private rights are possessed, 
by the will and assent of the people. The day is gone 
by, at least on this side the Atlantic, when the rights 
and interests of millions can be settled definitively by 
diplomatists in secret session, and when no other 
answer to a complaint is condescended, than that such 
matters are mysteries of State, into which even the 
party aggrieved has no right to incpiire. We entrust 
our public interests to our public officers, in the confi- 
dence that they will discharge their duty. If those 
duties are neglected or mismanaged, we find a remedy 
in the ballot-box. But when a citizen has a claim 
upon a foreign government, which from the nature of 
the case, as he is powerless against the foreign govern- 
ment, can only be redressed through the agency of his 
own government, and that claim is sacrificed by his 
government, he has no remedy, unless his government 
will indemnify him. He may, surely, with propriety, 
ask the question, why his claim was submitted? In 
the present case, that the British were the aggressors 
was a fact, patent, known at the time to hundreds of 
persons, which we had always asserted to be true, and 
which the evidence proves to be true. No impartial 
Tiian can investigate the evidence and reach any other 



29 

conclusion. Not only is the evidence on the point 
overwhelming, but such has always been the position 
taken by the United States from 1814 to 1841, by 
every administration, every Secretary of State, every 
American minister, and, until the year 1843, admitted 
to be true by the Portuguese government itself. If, as 
Mr. Webster wrote to Mr. Barrow on the 13th of 
January, 1842, the justice of this claim had never been 
denied, why did that eminent man consent to submit 
it to arbitration ? What call was there upon him to 
])ut it out of the power of the United States to perform 
that iirst and most sacred of duties, protection of the 
rights of the humblest citizen? A party who has a 
claim, of which no one denies the justice, is a most 
unlit manager of his business, when he submits it to 
arbitration, and thereby gives the arbitrator a discre- 
tionary authority to allow or reject it at his pleasure. 
We had always asserted that Portugal was bound by 
the law of nations to redress this iniurv ; and there is 
notliing in any part of the diplomatic correspondence 
on our part that tends to show that we ever intended 
to recede from this position. We had positively 
asserted that both the law and the facts were with us. 
We had expressed our views in every form. We had 
presented a firm, but temperate statement. We had 
resorted to argument. We had finally asserted our 
fixed determination that the injuries of our citizens 
must be redressed. Such being our position, the in- 
quiry may properly be made, why the various ques- 
tions in this case, involving the private rights of 
American citizens, should be exposed to the hazard of 
being loosely and partially considered by an European 
sovereign who, to say the least, would be as likely to 
be influenced by considerations of state policy as by a 



30 

regard to individual rights. If the government did 
not see fit to have recourse to arms to enforce the 
claim, they might, at least, have abstained from com- 
promising the rights of the claimants. But when the 
government were convinced that the facts were as the 
claimants alleged, the conclusion of law followed of 
course. The claimants alleged that the British were 
the aggressors. The government believed that such 
was the case, and that Portugal was bound to pay the 
claim. These positions, then, being distinctly taken, 
it may safely be said, that if this was a proper case for 
a submission, no case ever existed that would justify 
a resort to hostilities, so long as an arbitrator could be 
procured to determine the controversy. 

But whether this case was, in itself, under the cir-. 
cumstances, proper to be submitted to arbitration, there 
is a further view to be taken of the submission. 

On the 13th day of April, 1850, (Doc. 53, page 56,) 
Count Tojal wrote to Mr. Clay that the Portuguese gov- 
ernment " will now propose to refer this affair to the 
decision of a third power." In his letter of July 6, 
1850, (Doc. 53, page 73,) Count Tojal refers to several 
claims of American citizens upon Portugal. A list of 
them is given with the amount claimed in each. They 
were ten in number, and the aggregate amount was 
$233,327. The amount claimed in the case of the Gen- 
eral Armstrong was $131,600. The others amounted 
to $91,727. Count Tojal then says: "The government 
of her Majesty, animated with the same desire, &c., 
yields to the force of circumstances, and without again 
reverting to the justice or injustice of the claims pre- 
sented by the government of the United States, and only 
pro honopacis^ offers to pay the said mentioned claims, 
amounting to $111,727, according to Mr. Clay's account, 



31 

with the only exception of that relating to the privateer 
General Armstrong. In respect to this claim the under- 
signed cannot deviate from the proposal heretofore made 
to Mr. Clay, that of so important a claim being submitted 
to the decision of a third power." 

It is to be noticed that the justice and legality of the 
claims, which Count Tojal thus oflered to pay, had been 
denied as strenuously as the claim relating to the Gen- 
eral Armstrong. Why the Portuguese government were 
unwilling to pay this claim, is indicated by the following 
extract from the same letter of Count Tojal: "Her 
^[ajesty's government, besides the arguments contained 
in the notes lormerly addressed to the government of 
the United States, finds its judgment, and the manner 
of weighing the question of the privateer General Arm- 
strong, strengthened with the opinion of her Britannic 
Majesty's government, which has always deemed this 
claim of the government of the United States unjust." 
Why, again, it was necessary for Portugal to ask the 
opinion of England, is shown by another extract from 
Count TojaFs letter, in which he says: " The subsisting 
relations between her most faithful Majesty's govern- 
ment and that of her Britannic Majesty, oblige the un- 
dersigned to communicate to the British government 
all that has taken place." 

But whatever influences operated upon the Portuguese 
government, and it is not difficult to appreciate them, 
the proposition made by Count Tojal was not divisible. 
It was complete in itself. It was not an absolute pro- 
posal to pay the other claims, but to pay them, and to 
submit .this to arbitration. As Portugal had, up to the 
time of the proposition, invariably denied the justice of 
the other claims, and as she said she offered to pay them 
and submit this, on\y p-o bono pacis, we could not have 



32 

called on her to pay the other claims, unless we agreed 
to submit this to arbitration. It would have been un- 
reasonable in the extreme if our government had called 
upon Portugal to pay the other claims without agreeing 
to submit this. But that the proposal was one and in- 
divisible is, we think, too clear to admit of question, 
or to need argument in its support. When, therefore, 
our government decided to accept the proposal, as it 
did, by Mr. Webster's letter of the 23d of August, 1850, 
it assumed the right, which, in the present case, we are 
not disposed to deny or inquire into, of exposing the 
claim of the owners of the General Armstrong to the 
chances of an arbitration, for the purpose of procuring 
thereby the settlement of the remaining claims upon 
Portugal, and of putting an end to all embarrassing- 
negotiations with that power. 

The case does not call upon us to deny the right of 
the United States to submit to arbitration the claim of 
a citizen upon a foreign government without his assent, 
or even against his j^rotest, and the question need not 
be investigated. Of course, his assent would estop him 
afterwards from objecting that a submission was entered 
into. As there is evidence upon this point, we have 
examined it for the purpose of showing the relative 
positions of the claimants and the United States. 

On the 5th of September, 1850, Mr. Reid, the agent 
for the claimants, wrote to Mr. Webster: " I perceive 
it is proposed to refer the claim of the owners of the 
brig General Armstrong to the King of Sweden for 
arbitration. I hope the Department of State will make 
no final arrangements in this case, under the present 
circumstances, and I desire that it may be left open 
until I can have a conference with you on the subject. 
I hope no steps will be taken which will 



* v:- -X- * 



3 



o 



compromis? the riglits of the claimant?, until T can have 
the pleasure of seeing you." To this letter Mr. Web- 
ster answered, on the 13th of September, that the pro- 
position of Count Tojal to pay the several claims pre- 
ferred by the American government against that of 
Portugal, with the exception alone of that of the 
General Armstrong, which was to be referred to the 
King of Sweden, &c., had already been accepted by 
the government. 

We look in vain here for any evidence of assent to 
the submission. When Mr. Rcid hears that it is pro- 
posed to submit the claim, he hopes that the matter will 
be left open until he can have a conference with Mr. 
Webster, and that no steps will be taken that will com- 
promise the rights of the claimants until he can see 
him. Do these words mean the very reverse of what 
they express? Does ^Ir. Reid mean, when he uses 
this language, to say that he assents to the submission? 
If so, language was given us to disguise our thoughts, 
and not to express them. But not only does he not 
assent to the submission, but it was agreed to without 
any opportunity for him to assent or dissent, and with- 
out his knowing anything about it; for Mr. Webster 
informs him that the proposal of Count Tojal had 
already been accepted. If there ever were a plain 
case of dissent, it is furnished by Mr. Reid's letter. 
There is no evidence of his acquiescence in the sub- 
mission, for all ho did was to request that he might 
be heard before the arbitrator, after he was informed 
that the treaty had been concluded. 

It may be proper to notice, in this connection, a 

position taken by the solicitor, that a claimant, in a 

case like this, is conclusively bound by the action of 

his government. In the instructions to Mr. Kavanagh, 
5 



34 

of the 21st of September, 1836, Mr, Forsyth says: "It 
is well understood that afier asking the interference of 
their government to procure redress for the injuries 
they suppose themselves to have sustained, the parties 
must abide by such settlement as that government may 
make.'' This proposition cannot be correct in the broad 
language used. No individual can urge his claims upon 
a foreign government with any hope of success, except- 
ing that derived from' their sense of justice. A private 
person, armed with no power of enforcing his rights, 
and unassisted by his own government, cannot speak 
in sufficiently impressive tones to insure his being heard 
by a foreign nation. His own government, in the dis- 
charge of that duty of protection which it owes to its 
citizens, must speak for him. " If any complaint is to 
be made on the part of the captured, it must be by his 
government to the neutral government for a fraudulent 
or unworthy or unnecessary submission to a violation 
of its territory." — 1 Kenfs Com., 121. If Mr. Forsyth's 
statement be correct, the government would be justified 
in making use of and surrendering the claim of one of 
its citizens for the purpose of procuring the payment of 
the claim of another. If, by saying that " the parties 
must abide by such settlement as the government may 
make," it be meant only that the party, after such settle- 
ment has been made, cannot enforce his claim against 
the foreign state, the position is correct. But if it be 
meant that, whatever settlement the government of the 
claimant may make, it incurs no responsibility for the 
claim to its own citizens, the doctrine cannot be ad- 
mitted. In the case of the Baron De Bode vs. Regina, 
17 Eng. L. & Eq. Rep., 14, Lord St Leonards, the Lord 
Chancellor, said: "It is admitted law that if the sub- 
ject of a country be spoliated by a foreign government, 



35 

he is entitled to obtain redress from tlie foreign gov- 
ernment throu":h the means of his own c^overnment. 
But if, from weakness, timidity, or any other cause on 
the part of his own government, no rtidress is obtained 
from the foreigner, then he has a claim against his own 
country. Here is a compromise of the two govern- 
ments ; the question is, how far his claim is affected by 
it." It cannot be supposed, however, that Mr. For- 
syth intended to convey the idea that whatever course 
the government might pursue, in no event would it be 
liable to the claimant. Such a proposition would be, 
in substance, that the government is not responsible for 
wrong ; a ground which, we presume, no one would 
seriously attempt to maintain. 

Before examining the objections that have been made 
to the award, it is proper to consider the position taken 
by the claimants, that they were not permitted to be 
heard before the arbitrator. 

The treaty having^ been ratified by the Senate on the 
7th of March, 1S51, on the lOth of March Mr. Web- 
ster wrote his letter of instructions to Mr. Hadduck, 
who had succeeded ^[r. Clay as our charge at Portugal. 
The material part of this letter refers to the third arti- 
cle of the treatv, which is as follows: 

"So soon as the consent of the sovereign, potentate, 
or chief of some friendly nation who shall be chosen 
by the two high contracting parties, shall have been 
obtained to act as arbiter in the aforesaid case of the 
privateer brig "General Armstrong," copies of all cor- 
respondence which has passed, in reference to said 
claim, between the two governments, shall be laid 
before the arbiter, to whose decision the two high con- 
tracting parties hereby bind themselves to submit." 

Mr. Webster directs Mr. Hadduck " to compare and 



3G 

authenticate, jointly with the Portuguese government, 
the copies therein specified. You will understand, of 
course, that these copies are limited to such communi- 
cations as have passed between the American legation 
and the Portuguese government at Lisbon, and between 
this department and the Portuguese legation in Wash- 
ington." On the 12th of July, 1851, Mr. Webster 
Avrote to Mr. Hadduck, and after stating the instruc- 
tions contained in his previous letter, says: ''To pro- 
vide, however, against an omission of any important 
part of the earlier portion of the correspondence — I 
mean that which passed in 1814 and 1815, in Rio Jan- 
eiro, where the court of Portugal at that time resided, 
and which it could not have been intended to exclude — 
I transmit to you herewith a printed copy of the cor- 
respondence as communicated to Congress on the 15tli 
December, 1845." This letter, however, reached Mr. 
liadduck too late, as the treaty had been signed on the 
23d of June previous. The papers omitted were the 
v^^hole of document 14 of the Senate, 1st session 29th 
Congress, covering fifty-eight pages. It is said that 
the whole of this document is contained in substance 
in the subsequent correspondence. One letter, how- 
ever, was omitted, upon which much stress was laid in 
the argument on the question of lact, as to the party 
who made the first ajj-gression. This was the letter 
from Mr. Greaves, the British consul, dated on the 27th 
of September, 1814, to the governor of the Azores, 
informing him that if the governor should permit the 
masts to be taken from the schooner, the commander 
of the squadron would regard the island as an enemy 
of his Britannic Majesty, and would treat the town and 
castle accordingly. This was relied upon as tending 
to prove that Captain Lloyd desired to capture the brig 
and use her in his operations against this country. 



.?7 



But, not only was no provision made for laying before 
the arbitrator all the correspondence which might throw 
light upon the case, but the claimants were refused the 
privilege of being heard before the authority which 
was to decide upon their rights. Upon the Tth of July, 
1851, the agent of the claimants filed, at the Depart- 
ment of State, a written argument and statement of 
facts, which he requested might be sent to our minis- 
ter, that he might submit it to the arbitrator, which 
was verbally refused, on the ground that the terms of 
the treaty precluded it. To two notes to the Secretary 
of State, to the same ellect, he received no answer. 
He then requested the President that he might be sent 
to France with the papers and documents, that he might 
present his case through Mr. Ptives ; but this was also 
refused. 

It may well be asked here, why was the case so sub- 
mitted that the party interested could not be heard? 
If the United States, ia the plenitude of their power, 
see fit to submit the claim of a citizen to arbitration 
without his assent, ought they not to make the most 
careful and ample provision that he shall be fully and 
fairly heard, and that he shall have all reasonable oppor- 
tunity to lay before the arbitrator the evidence on 
which he relies? An award made without the party 
having had an opportunity to be heard, rests neither 
upon law nor justice. If the case was sufficiently 
national in its bearings to be submitted to the arbitra- 
tion of an European prince, it was, surely, important 
enough to deserve a careful investigation into the facts, 
and the parties, whose pecuniary interests were involved, 
were the very persons, of all others, to whom to en- 
trust such an investigation. 

The position that every party should have an oppor- 



38 

tunity to be heard before the tribunal that is to pass 
judgment on his rights, needs no labored argument to 
support it. It has been repeatedly asserted by the 
most eminent jurists. In Rigden vs. Martin, 6 II, & 
Johns., 403, the court said : " That the parties ought to 
have notice of the time of niceting, is a position so 
strongly supported by common justice that it would 
seem not to require the aid of authorities. Every man 
ought to have an opportunity afforded him to be heard 
in defence of his rights." In Falconer vs. Montgomery, 
4 Dallas, 232, it is said: " The plainest dictates of natu- 
ral justice must prescribe to every tribunal the law 
that 'no man shall be condemned unheard.' It is not 
merely an abstract rule, or positive right, but it is 
the result of long experience and a wise attention 
to the feelings and dispositions of human nature. * 
* ^'' Besides, there is scarcely a piece of written 
evidence, or a sentence of oral testimony, that is not 
susceptible of some explanation, or exposed to some 
contradiction ; there is scarcely an argument that 
may not be elucidated so as to insure success, or con- 
troverted so as to prevent it. To exclude the party, 
therefore, from the opportunity of interposing in any 
of these modes (which the most candid and intelligent, 
but a disinterested person, may easily overlook) is not 
only a privation of his right, but an act of injustice to 
the umpire, whose mind might be materially influenced 
by such an interposition." In the case of Lutz vs. 
Linthicum, 8 Peters, 178, Mr. Justice Story said: 
"Without question, due notice should be given- to the 
parties of the time and place of hearing the cause; and 
if the award was made without such notice, it ought, 
upon the plainest principles of justice, to be set aside.'' 
In Eimendorf vs. Harris, 23 Wend., 628, it was laid 



39 

down as a fundamental rule of construction in refer- 
ence to every transaction in the nature of a judicial 
proceeding, that the contract of submission necessarily 
implies that the arbitrator is not authorized or empow- 
ered to decide the question in controversy, without 
giving the parties an opportunity to be heard in rela- 
tion thereto. 

Mr. VYebster's construction of the 3d article of the 
treaty, which provided that the copies of the corres- 
pondence should be laid before the arbiter, excluded 
the presentation of any aigument. But tlie article con- 
tains no words of exclusion, and it is not to be pre- 
sumed that the arbiter would have refused to consider 
an argument for the claimants. The government re- 
fused to sanction, in any manner, the presentment of 
the case of the claimants to the arbiter, and without 
such sanction no private person would be permitted to 
intervene, of his own authority, between two nations. 
If Mr. Webster's construction be correct, then such a 
treaty, in violation of the plainest principles of justice, 
should not have been made. If his construction be 
wrong, then the agent was most unjustifiably hindered 
by the government from presenting his case. Whatever 
may be the true construction of the article, the claimants 
have suffered a wrong at the hands of the government, 
for which reparation should be made them. 

We come now to the consideration of the award, 
and it is necessary, in the first place, to ascertain the 
matter submitted to the arbitrator. 

The second article of the treaty is as follows : 

" The high contracting parties not being able to come 
to an agreement uj^on the question of public law involved 
in the case of the American privateer brig General 
Armstrong, &c., have consented that the claim pre- 



40 

sented by the American government, &c., should be 
submitted to the arbitrament of a sovereign," &c. 

The claim, then, was submitted, because the parties 
could not agree upon the question of law. It was not 
because they could not agree upon the facts, or the 
amount of the claim. Thus the matter in dispute was 
the simple question of law. As that question should 
be determined, so must be the award of the arbitrator. 
But that question was not determined at all, the award 
being founded solely upon the facts. If this construc- 
tion of the submission be correct, it follows that the 
award is void : firstly, because it does not settle the 
matter in dispute, and the matter submitted; and, 
secondly, because it does settle the question of fjxct, 
which was not submitted, and thus exceeds the sub- 
mission. 

But there is another view to be taken of the sub- 
mission. Although the question of law was that about 
which the parties were unable to agree, the claim was 
submitted, and this comprehends both the question of 
law and the question of flict. Having found the ques- 
tion of fact against the claimants, it is urged that this 
decision, involving the fact that the Americans were 
the aggressors, is conclusive against the claimants. 
Such would undoubtedly be the case if the claimants 
had had the privilege of being heard, by laying before 
the arbitrator their argument and proofs. But it is to 
be remembered, that in this case, not only was the sub- 
mission made without the assent of the claimants — not 
only were they denied all opportunity of appearing 
before the arbitrator — but the case, during all the 
period from the submission to the award, was in no 
condition to be heard. It had never been prepared 
for trial. The claimants had done all that was ncces- 



41 

sary for their immediate purpose : they had presented 
their daim to their own government, and had requested 
that it might be urged upon the government of Por- 
tugal. Mr. Webster did not suppose that all the evi- 
dence had been furnished on which the claimants 
rested their case, for on the 15th of January, 1842, he 
wrote to Mr. Barrow: "If the inadmissibility of the 
claim is made to depend upon the defect of evidence, 
or upon any other cause, you will ascertain precisely 
what further evidence is required in addition to that 
which has already been communicated by Captain Reid, 
and will be found on tile in your legation." The trans- 
action occurred in the harbor of Fayal, near to the 
shore, on a moonlight evening, and in the presence of 
innumerable witnesses. If the facts were to be con- 
tested, the claimants should have had the opportunity 
of procuring the testimony of those who witnessed the 
aftair, and of placing their case in the most favorable 
light. This privilege is not denied to the humblest 
suitor, in the most petty controversy. It has been 
denied to these claimants by the action of their govern- 
ment. They are remediless as to Portugal, for all 
claim is barred by the action under the treaty. Their 
just rights have been disregarded and sacrificed by the 
United States; and the question then arises, whether 
the United States are bound to make them compensa- 
tion. 

In relation to this point, we have the facts that the 
British were the aggressors ; that the owners of the brig 
had a valid claim upon Portugal for indemnity ; that 
the claim was submitted to arbitration by virtue of the 
power of the United States to do so, without the assent 
of the claimants ; that the treaty was so worded as, by 
Mr. Webster's construction, to deprive the claimants of 
6 



42 

all opportunity of being heard in any manner ; that the 
United States refused tosancti3n their application to be 
heard; that they were not heard ; that the award was 
made without their privity, in their absence, and in 
violation of the universal principle that no one shall be 
condemned unheard ; and that they were entitled to be 
heard upon every principle of private justice, public 
law, and that regard to equity and fair dealing, with- 
out which, neither a nation nor an individual can ever 
be respected. It is entirely immaterial whether the 
question submitted was one of law or of fact. Even if 
we admit, for the sake of the argument, that upon the 
evidence now before us, it was doubtful which party 
was the aggressor, and even if we admit iu the same 
way that the validity of the claim upon PorLugal was 
a doubtful question, that does not at all affect the right 
of the party interested to be heard. So much the 
greater call was there upon the United States to pro- 
vide that they should be heard. The principles of 
justice are universal, and not local. They are as bind- 
ing upon the Emperor of the French as upon the 
humblest tribunal. Every step in this affair, from the 
acceptance of the proposal by Portugal to submit the 
case, to the ratification of the treaty, was the act of 
the United States alone. The award having been made 
against the United States, they are answerable to the 
claimants for the loss they have sustained, upon the 
principle that a nation, being entitled to the allegiance 
and obedience of its citizens, is solemnly bound, in 
return, to protect, not only their persons, but their 
property. It is said by Vattel, (ch. 2, § 17) : "If a 
nation is obliged to preserve itself, it is no less obliged 
carefully to preserve all its members. The nation owes 
this to itself, since the loss even of one of its members 



t3 



weakens it, and is injurious to its preservation. It owes 
this also to its members in particular, in consequence 
of the very act of association ; for those who compose 
a nation, are united for their defence and common ad- 
vantage ; and none can justly be deprived of this union, 
and of the advantages he expects to derive from it, 
while he, on his side, fulfils the conditions. The body 
of a nation cannot then abandon a province, a town, or 
oven a single individual who is a part of it, unless com- 
pelled to it by necessity, or indispensably obliged to it 
by the strongest reasons, founded on the public safety." 
It is on this duty of protection that the duty of 
allegiance depends. We owe allegiance to the country 
where we were born, where we were educated, and 
under the protection of whose laws we live. To it we 
owe the sacrifice of our comfort, our property, and our 
lives, when the occasion requires it. And it is from 
the existence of these comprehensive duties on our 
part, that the reciprocal duty of protection arises. 
Our country is bound to protect our rights as indi- 
viduals ; and if this protection be not afforded us, she 
is bound to render us such an equivalent as it is in her 
power to bestow. Against another nation she is bound 
to assert our claims, fur she alone can meet such an 
antagonist on equal terms. If she neglects the sacred 
duty of protecting us in our rights, she is bound to 
make us compensation. These principles are no recent 
discoveries. They are as old as the institution of civil 
government. Their recognition by a state is the surest 
and firmest bond by which the citizen is attached to 
his government and his country. They embody the same 
idea expressed by the Lord Chancellor in the case of 
the Baron de Bode, to which we have referred, that " if, 
from weakness, timidity, or any other cause, on the part 



44 

of his own government, no redres s is obtained from the 
foreigner, he (the citizen) has a claim against his own 
country." In the case of Faruam vs. Brooks, 9 Pick, 
p. 239, Parker, C. J., intimates an opinion that there 
is an obligation on the government of the United 
States to procure redress for its citizens, or itself to 
reimburse them. 

In relation to the question of damages, no evidence 
has been laid before us. The sum claimed of Portugal 
is mentioned in the correspondence, but no proof of 
the damages sustained appears in the case. Upon this 
point testimony must be taken. 



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